SirajuddIn Khan @ Siraj Vs. Dr. Shahnaz Firdous - Court Judgment

1 M.Cr.C.No.10341/2011 HIGH COURT OF MADHYA PRADESH : JABALPUR BEFORE : TARUN KUMAR KAUSHAL, J.

M.Cr.C No.10341 OF 201.PETITIONERS:1.

Sirajuddin Khan @ Siraj, S/o Jamaluddin Khan, Aged 29 yeaRs.2.

Dr.

Jalladuddin, S/o Manavwar Khan, Aged 63 yeaRs.R/o 298, Pragati Nagar, Chhota Mil, Tilhari, Thana Cantt.

District-Jabalpur (M.P) Versus RESPONDENT: Dr.

Shahnaz Firdous, W/o Sirajuddin Khan @ Siraj, aged 28 year, R/o 298, Pragati Nagar, Chhota Mil, Tilhari, Thana Cantt.

District-Jabalpur (M.P) at present Daughter of S.R.Ali 417, Narmada Nagar, Raddi Chowki, Adhartal, P.S.Gohalpur, District-Jabalpur (M.P) ****************************************************************** For petitioners : Shri Sanjay Patel, Advocate.

For Respondent : Shri Mukhtar Ahmed, Advocate.

****************************************************************** JUDGMENT

/01/2013 This petition has been preferred under section 482 of Code of Criminal Procedure, 1973 (in short Cr.P.C) seeking relief of quashment of proceedings pending in the court of JMFC, Jabalpur as MJ.No.30/2009 under The Protection of Women from Domestic Violence Act, 2005 ( in short Act of 2005) on the basis of 2 M.Cr.C.No.10341/2011 complaint of respondent.

Fact of the case, in short, are that on 04/4/2006 marriage of petitioner no.1 with respondent was solemnized.

After about 3 years of matrimonial relationship differences arose.

On 23/08/2009 respondent lodged FIR at Mahila Thana, Jabalpur at Crime No.42/2009 against the petitioners under section 498A, 506 IPC read with section 3/4 of Dowry Prohibition Act.

On 18/09/2009 in the court of JMFC, Jabalpur, respondent preferred an application under section 12 of Act of 2005.

Simultaneously, on 22/09/2009 respondent preferred an application for grant of maintenance against the petitioner/husband in the Court of JMFC, Jabalpur under section 125 Cr.P.C.During the pendency of these aforesaid cases and also during pendency, of this petition in the year 2011, respondent preferred an application seeking divorce under section 2 of Disolution of Muslim Act, which is pending in the Family Court Jabalpur.

This petition has been preferred on the grounds that during pendency of the case under section 498A IPC, registration of a case against the petitioners under Domestic Violence Act amounts to Double Jeopardy because for the same cause of action repeated remedies are being availed whereas no person can be prosecuted and punished for the same act more than once.

It would be against the provision and spirit of the Article 20(2) Constitution of India as well as section 300 (Part1) of Cr.P.C.Respondent is alleging contradictory facts regarding the cruelty and harassment against the petitioneRs.At one hand, she says that on 14/04/2009 she was compelled to leave the house and was asking for divorce on the basis of that, at the same time she is alleging continuous harassment and ill-treatment by the members of matrimonial house.

Per contra it is submitted by learned counsel for respondent that section 3 of Act of 2005 is very exhaustive and covers so many instances of Domestic Violence, which are not in purview of the 3 M.Cr.C.No.10341/2011 section 498A IPC.

In so far as provision of grant of maintenance and compensation is concerned, remedy provided in Act of 2005 is an alternative remedy and in addition to the existing remedies, hence, it cannot be said to be an instance of abuse of process of law, if wife approached in different forums for redressal of grievances against the husband.

According to section 20(d) of Act of 2005 the maintenance for aggrieved persons as well as for her children, if any, includes an order or in addition to an order of maintenance under section 125 Cr.P.C or any other law for the time being in force.

Meaning thereby that under section 12 of Act of 2005 nothing prevents the Judicial Officer to consider for monetary reliefs in favour of lady, who was already granted maintenance under Code of Criminal Procedure or any other law prevailing at the relevant time.

According to section 31 of the Act of 2005 Magistrate may also frame charges under section 498A IPC or any other provision of that Code or the Dowry Prohibition Act, if sufficient material has come on record in case of Domestic Violence Act.

Meaning thereby proceedings under section 498A IPC and proceedings under Domestic Violence Act can go together simultaneously.

In view of the clear provisions under the Act of 2005 itself, it cannot be said to be an instance of double jeopardy if different cases like trial of offence under section 498A IPC, matter of award of maintenance under section 125 Cr.P.C and case of Domestic Violence Act, 2005 are going together simultaneously between the couple in respective courts.

According to section 26 of Act of 2005, aggrieved person is bound to disclose the fact whether any other proceeding is pending between wife and husband or not.

Such disclosure will act like “check and balance”.

because at the time of granting of relief, this fact will be kept in mind by the court that aggrieved lady had approached other forums also for redressal of grievances.

4 M.Cr.C.No.10341/2011 Learned counsel for petitioners placed reliance on unreported judgment Delhi High Court passed in M.Cr.C.No.491/2009 (Sanjay Bhardwaj & others versus The State & anr) and also judgment of Bombay High Court reported in 1992 CriLJ 184.(Ravindra Haribhau Karmarkar versus MRS.Shaila Ravindra Karmakar and anr) and submitted that repeated efforts of claiming maintenance etc is nothing but is an instance of abuse of process of law by the wife.

Per Contra learned counsel for the respondent placed reliance on (2011).SCC 14.(Chanmuniya versus Virendra Kumar Singh Kushwaha & anr) and submitted that true spirit and essence of beneficial Act should be kept in mind and fact of divorce should not come in way for granting maintenance etc.provision of Cr.P.C or some other Act.

Taking over all facts and circumstances of the case into consideration, it is revealed that application of Domestic Violence Act was filed subsequent to the lodging of FIR under section 498A IPC against the petitioneRs.Domestic Violence Act provides an alternative remedy for seeking compensation etc in addition to the existing provision.

Chance of abuse of process is also negligible because aggrieved party is bound to inform fact of pendency of all previous cases of such nature and order is passed after hearing both the parties taking into account all such cases.

It is not a case of Double Jeopardy and is not a case of abuse of process of court.

Court will proceed according to merits of the case and according to law applicable on them.

No case of abuse of process and quashment of proceedings is made out.

Accordingly petition is dismissed.

(Tarun Kumar Kaushal) Judge tarun